High Court Cases 

High Court Auckland M1600/96 and HC 146/96
7, 8 July 1997; 23 July 1997
Giles J

Judicial review - Approach to judicial review of RSAA decision

Judicial review - Natural justice - Fairness - Whether obligation to draw attention to potential adverse credibility findings

Judicial review - Reasons - Proper approach to review of reasons 

Judicial review - Jurisdiction to review credibility finding of RSAA

Judicial review - Delay - Effect of

Judicial review - Interpreter - Whether duty to provide adequate interpreting and translation services

Judicial review - Effect of remitting decision to RSAA and RRA for reconsideration
 

In 1992 the plaintiff, a citizen of Iran, arrived in New Zealand and claimed refugee status. When that application was dismissed he appealed to the Refugee Status Appeals Authority (RSAA). The appeal was heard in 1993 and dismissed in 1995, the RSAA holding that the plaintiff's account was not credible. The plaintiff was served with a removal order, and appealed unsuccessfully against this to the Removal Review Authority (RRA) under s 63B Immigration Act 1987. The plaintiff sought judicial review of the decisions of both the RSAA and the RRA.

Held:

1    The RSAA is an independent body and a creature of the Crown prerogative. The RSAA has developed its own jurisprudence, applying the principles of the Refugee Convention and having regard to the UNHCR Handbook. The RSAA is obliged to apply principles of natural justice when making its decision (see paras [5] & [6]). 

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) followed; Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J); Refugee Appeal No. 523/92 Re RS (17 March 1995) mentioned.

2    The proceedings against the RSAA were approached on the basis that the reasons articulated in the RSAA's decision were the only reasons for the decision to dismiss the appeal. It was not appropriate to speculate or infer other factors which may have had a bearing on the decision (see para [17]).

3    There was jurisdiction to review a credibility finding of the RSAA. Each case turns on its own facts, and it would be unusual to successfully challenge a credibility finding made in circumstances where the principles of natural justice had been followed. However, the Court would intervene if the credibility finding had been made, in all the circumstances, unfairly. The plaintiff  would have to show that the decision was so unreasonable that no reasonable RSAA could have reached it (see para [19]).

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J); Cen v Canada (Minster of Citizenship and Immigration) [1996] 1 CS 310 (FC:TD); Augebor v Minister of Employment and Immigration (1993) NR 315 (FC:CA) discussed.

4    The Refugee Status Branch of the New Zealand Immigration Service was not represented by counsel at the RSAA hearing, and as such the RSAA conducted a purely inquisitorial hearing, contrary to the facts in Khalon. Also contrary to Khalon was that in the present case the RSAA did not make it clear to the plaintiff that credibility was a major issue. A body with an inquisitorial function such as the RSAA had a duty to ensure that the plaintiff was given an opportunity to confront factual issues where a variety of explanations were possible, when the issues were of significance to credibility. This was especially so in the context of refugee law where the standard of fairness is high and the benefit of the doubt is given to the plaintiff. If it was reasonably foreseeable that credibility issues had arisen, the RSAA did not need to draw the plaintiff's attention to this. However, where credibility findings were being made in circumstances where it was not clear to the plaintiff or his counsel what was in the mind of the questioner, an opportunity had to be be given to the plaintiff to confront the relevant issues (see paras [26] to [32]).

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) discussed

 5    Five reasons were offered by the RSAA for the adverse credibility finding. As to the first reason offered by the RSAA, it was not totally clear what point the RSAA was making. If it was making an observation of fact, it was unfair to make a credibility finding on a matter of fact which could not be changed. If the RSAA was rejecting the appellant's evidence on the facts, it should have done so in a clearer way.

As to the second reason offered by the RSAA, there was concern about the adequacy of the translation of some of the plaintiff's evidence.  It was not foreseeable for the plaintiff or counsel to anticipate that the RSAA would make a credibility finding where the circumstances were confused.

As to the third reason offered by the RSAA, namely that parts of the plaintiff's account were fanciful, it was open to the RSAA to conclude on the facts that these parts of the plaintiff's account were not credible.

As to the fourth reason offered by the RSAA, it was open to the RSAA to make findings of fact contrary to the position being advanced by the plaintiff.  

As to the fifth reason offered by the RSAA, the plaintiff could not have anticipated that the RSAA would use the destruction of certain evidence, namely a letter, as a significant factor in making an adverse credibility finding. There was no evidence to support the RSAA's conclusion that the plaintiff accepted that the destruction of the letter was crucial. The RSAA also made a mistake of fact as to whether a paragraph had been deleted from the plaintiff's evidence before it was presented to the RSAA.

The RSAA failed to give the plaintiff an opportunity to comment on matters which it regarded as being important to credibility, and was mistaken as to a number of these matters. The RSAA thus misdirected itself. It could not be said that a reasonable RSAA acting on full information and with explanations from the plaintiff for adverse material could have reached this decision (see paras [33] & [37]).

6    There was no prejudice to the plaintiff in the delay between the hearing and the delivery of the RSAA's decision. The plaintiff did not complain about the delay until the present proceedings, an attitude which was at odds with his claim that there was any real prejudice. Although the delay did not create an independent ground of review on the facts, the long delay between the hearing and issue of the decision was unacceptable. The delay would have resulted in the decision maker being less familiar with the evidence (see paras [40] to [42]).

7    The Refugee Status Branch and the RSAA had a duty to provide competent translation services. If a poor or inadequate translation prejudiced the plaintiff, this could violate the principles of natural justice. However a realistic approach had to be taken, one acknowledging that there would always be differences in translation. The adequacy of the translation had to be assessed as a whole, not by assessing selected passages. Although there were some mistakes in translation, overall the quality of translation was more than adequate (see paras [43] to [46]).

Choudry v Canada (Secretary of State) 24 Imm LR (2nd) 197 (FC:TD); Assn. of Parents for Fairness in Education, Grand Falls Dist. 50 Branch v Société des Acadiens du Nouveau-Brunswick Inc [1986] 1 SCR 549 (SC: Can); Mosa v Canada (Minister of Employment and Immigration) (1993) 154 NR 200 (FC:CA); Basyony v Canada (Minister of Employment and Immigration) (1994) 27 Imm LR (2nd) 303 (FC:TD) mentioned.

8    The fact that the matter was remitted to the RSAA for reconsideration did not imply that the Court accepted that the plaintiff's account was credible. It would be open to the RSAA on reconsideration to make adverse credibility findings as long as it complied with the principles of natural justice in doing so (see para [50]).

9    The RRA was entitled to accept the credibility findings of the RSAA, as they were determining the same issue. The RRA must provide reasonable detail as to the basis for its conclusion, but this does not require an encyclopaedic type decision. The reasons given must be sufficient to enable the plaintiff to understand the basis for the decision. This would depend on each case. Because the decision of the RSAA was quashed, the decision of the RRA relying on the findings of the RSAA was also set aside (see para [52]).

Talukder v Removal Review Authority (High Court, Auckland, M140/95, 30 March 1995, Thorp J) discussed

Decision of RSAA set aside and remitted for reconsideration; Decision of RRA set aside and remitted for reconsideration; Suppression order granted

Counsel
D J Ryken for the plaintiff
B H Dickey for the first and second defendants/respondent

[Editorial note:  When the appeal to the RSAA was reheard before a differently constituted panel, refugee status was granted.  See Refugee Appeal No.  70656/97 Re KB (10 September 1997).  As to the suggestion by Giles J that the Authority appoint its own counsel to assist, the Authority stated at 4-5:

"As the present appellant's case involved no exceptional feature, this panel of the Authority determined that the case should proceed in the normal way as in an inquisitorial inquiry and that it would be inappropriate for the Refugee Status Branch to be represented by counsel.  As to the suggestion by Giles J that the Authority appoint its own counsel to assist, we note that we have no such jurisdiction or power.  Perhaps the suggestion was based on Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) for we note that at page 18 of the decision in B, Giles J stated:
 
'In Khalon although the hearing was inquisitorial, it is to be noted that the Refugee Review Section [sic] was represented by counsel at the hearing and exercised rights to question the witness.  As a result the RSAA had the advantage of "quasi-adversarial" format.'
 
With respect, this interpretation of Khalon is entirely mistaken and cannot stand in the face of the judgment itself.  The Refugee Status Branch was not in fact represented at the hearing before this Authority.  See in particular [1996] 1 NZLR 458, 469, lines 40-49 and the Authority's decision in Khalon's case (see Refugee Appeal No. 389/92 Re AUK (27 May 1994)) specially records that there was no appearance for the New Zealand Immigration Service."]

Introduction

[1] These two proceedings, heard together by consent, concern the refugee status of the plaintiff/appellant (referred to in this judgment as "B"). M. 1600/96 is a judicial review proceeding brought against the Refugee Status Appeal Authority ("RSAA") and the Minister of Immigration. The RSAA abides the decision.

[2] The plaintiff seeks an order setting aside the decision of the RSAA made on 8 February 1995 dismissing the plaintiff's application for refugee status within the meaning of the United Nations Convention Relating to the Status of Refugees 1951 and the 1967 Protocol ("the Convention").

[3] B alleges natural justice shortcomings in the RSAA’s approach and seeks an order remitting the matter to the RSAA for reconsideration. I will turn to the detail of the causes of action shortly.

[4] The second proceeding (HC. 146/96) is an appeal on points of law against a decision of the Removal Review Authority ("RRA") delivered on 11 September 1996 dismissing B's appeal based on humanitarian grounds against a removal order which had been served on 13 April 1995 following the release of the decision of the RSAA which is the subject of the judicial review application.

The RSAA and refugee procedures

[5] The RSAA is an independent body established by the Minister of Immigration. It is not a creature of statute but rather of the Crown prerogative. It is so established to enable New Zealand to discharge its obligations as a party to the Convention. A more detailed explanation of its background can be found in the judgments of Fisher J in Khalon v Attorney-General [1996] 1 NZLR 458, 461-462 and of Smellie J in Singh v RSAA [1994] NZAR 193, 197-200.

[6] In exercising its jurisdiction the RSAA applies the principles of the Convention and has regard to a Handbook published by the United Nations High Commissioner for Refugees. This latter is used as a guide. The Authority is entitled to, and indeed has, developed its own jurisprudence.

[7] It is unnecessary for the purposes of this judgment to have to set out in great detail extracts of either the Convention or the Handbook. But the following paragraphs of these documents were the focus of submissions by both the plaintiff and the Minister -

Article 1A(2) -

(2) For the purposes of the present Convention, the term "refugee" shall apply to a person who: As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reason's of race, religion, nationality, membership of a particular group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. (The reference to 1 January 1951 has apparently been superseded.) .

UNHCR HANDBOOK -

196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

"(a) The authority performs a function which requires it to observe natural justice in general: see for example Daganyasi v Minister of Immigration [1980] 2 NZLR 130 (CA) and Chen v Minister of Immigration [1992] NZAR 261 (CA).

(b) It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her case with knowledge of the case which he or she has to meet: ibid; Kanda v Government of the Federation of Malaya [1962] AC 322, 337; Kioa v Minister for Immigration and Ethnic Affairs (1984) 55 ALR 669.

(c) The way in which that fundamental requirement is implemented will depend upon the context including the nature of the function which the decision maker is called upon to perform (see in particular the well-known dictum of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109, 118D) and the circumstances of the particular case which has come before that decision maker (Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, 506.

(d) In refugee cases only the highest standards of fairness will suffice since questions of life, personal safety and liberty, are at stake: R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, 531G (HL); Benipal v Ministers of Foreign Affairs & Immigration (High Court, Auckland, A.993/83, 29 November 1985, Chilwell J) and Singh v Refugee Status Appeals Authority (High Court, M. 1224/93, 9 February 1994, Smellie J)."

[10] The RSAA operates largely as an inquisitorial body. In Khalon Fisher J was not minded to draw any distinction between natural justice obligations arising in an adversarial context and natural justice obligations arising in an inquisitorial context. I share that view. It would be unusual and inconsistent with the very principles themselves to suggest that there is a different quality of natural justice extended to parties dependent upon the nature of the hearing and procedures adopted. But, as Fisher J acknowledges, whether or not the administrative law principles which apply have been properly recognised will always require an individual assessment made against the facts of the particular case. In Khalon, for reasons comprehensively set out in that judgment, the learned Judge was satisfied that the evidence demonstrated that the RSAA had conducted its hearing in a way which correctly applied those principles. In particular, on the issue of credibility (which, as will be shortly seen, is central to this case) the RSAA was held to have given fair and adequate warning throughout the hearing of the risk of an adverse credibility finding and the applicant for judicial review failed to make out a case that he had not been fairly treated. He could not demonstrate unfair surprise because the RSAA had consistently made it clear that credibility was at issue. The concerns of the RSAA had been identified and responses invited or were foreseeable.

[11] The procedure in refugee applications requires only brief mention. Upon arrival at the airport (often without papers or with forged documents) a person claims refugee status. To comply with the Convention, the Immigration authorities ordinarily grant a one month temporary permit which entitles the applicant to enter New Zealand. Within that month the refugee claimant must lodge a formal written application for consideration by the Refugee Review Section of the Immigration Department. It was common ground that such applications are often fairly cryptic in form. In this particular case, there was a short two page statement. It is not uncommon for expanded statements to be made subsequently, particularly once the refugee claimant procures consultant or legal advice. That was done here. An applicant is then interviewed by the Refugee Review Section officer handling the case. At interview he/she may be represented by a consultant or legal adviser. The Refugee Review Section then makes a determination as to whether the requirements of the Convention are met. If an applicant is unhappy with the decision of the Refugee Review Section he/she is entitled to exercise a right of appeal by hearing de novo to the RSAA. The RSAA has resort to the Convention, the Handbook guidelines, the evidence before the Refugee Review Section, any additional evidence offered including oral evidence, Human Rights documents, country reports - indeed, it can be said that the RSAA adopts a very flexible attitude to receipt of evidence all designed to ensure that a claimant for refugee status is given every opportunity to make out a case.

[12] In the event that an applicant fails before the RSAA and is served with a removal order under the provisions of the Immigration Act 1987, then a further right of appeal on humanitarian grounds to the Removal Review Authority is conferred by the provisions of s 63B of the Immigration Act 1987. Such an appeal is conducted on the papers and the appellant is not entitled to any oral hearing. A right of appeal on point of law direct to this Court is conferred by s 115A.

Background facts

[13] I propose to be deliberately circumspect in stating and reviewing the facts. For present purposes, it suffices to record that B is an Iranian citizen born of a Muslim family in 1968. His father was sympathetic to the Shah's regime, was employed by Telecom and had connections to Savak, the Shah's secret police. When the revolution initiated by Ayatollah Khomeni took hold B's father lost his job and became a flower seller. B claimed to have embraced anti-Government and pro peace philosophies at the young age of 10-11 years. He claimed that as a result he was denied access to higher education at University level. In 1987 he was required to enter the military where he was assigned to a unit which handled the receipt and dispatch of munitions and arms. It was B's case before the RSAA that he eventually established contact with two military officers having links to the Mujahedin partisans, a group fairly widespread throughout Iran opposed to the Government. B supplied information on munitions movements to these two contacts and as a result certain convoys were attacked, one successfully, one unsuccessfully, both with significant loss of life. After his military service concluded, B claimed that he fled to Northern Iran concerned for his safety. At some point in time, his two contacts were arrested by the authorities. B became concerned for his on-going safety, returned to Teheran, arranged to secure a false passport and eventually left Iran. By a rather circuitous route he arrived in New Zealand on 10 June 1992 and claimed refugee status. He duly made an application to the Refugee Review Section but was unsuccessful in persuading that body that he was a refugee. He appealed to the RSAA and was accorded a hearing before that body at which he was represented by counsel on 11 November 1993. Some 15 months later the RSAA issued a decision declining his application. He was then served with a removal order, at which point he exercised his appeal rights under s 63B of the Immigration Act 1987. He was again unsuccessful. It is against those two decisions that he now brings judicial review proceedings and an appeal on points of law.

The RSAA decision

[14] As noted, the hearing before the RSAA was held on 11 November 1993. The RSAA's procedural "Terms of Reference" urge a written decision giving reasons within 8 weeks of lodging of the appeal. See Part II, para 17. The RSAA did not issue its written decision until 8 February 1995. In its decision the RSAA dismissed the plaintiff's appeal on credibility grounds. It made no specific findings as to whether the applicant came within the Article 1A(2) definition, although that is the inference to be drawn from the dismissal of the appeal.

[15] There was evidence from a member of the Authority who had presided over the plaintiff's appeal, that the three members who had heard the appeal conferred immediately after the hearing on 11 November 1993 and unanimously concluded that the application for refugee status should be dismissed. There is no reason to doubt that evidence but it is not the end of the issue. The written decision was not issued until some 15 months later, although it seems likely that it was circulated in draft in or about November 1994. At the stage at which the decision was written the members did not have the benefit that I have had of a typed transcript of the oral hearing taken from an actual tape recording made on 11 November 1993.

[16] The decision comprised some 12 pages. The Authority recites the appellant's claim at pages 2-7, correctly records the issues for consideration under the Convention and the Protocol and then moves to make an express finding adverse to B's credibility. As this is central to the judicial review proceedings I set it out in full -

"In a consideration of the first issue the appellant's credibility is a matter that the Authority must have regard to. Problems which cause the Authority to have grave doubts about the appellant's credibility are -

1. From such an early age as 10 and 11 years old the appellant should have developed such strong political beliefs that were to affect his educational opportunities thenceforth and he was unable to effect a compromise that would have allowed him to attain the educational levels and subsequent job opportunities that he sought.

2. The fantastic methods by which the appellant notified his friends of the details of only those convoys to which he was not assigned (although he made an apparent slip in his discourse advising that he used to telephone PA from staging points along the way).

3. The fanciful method of capturing convoys at [details suppressed].

4. The whole narrative of the Mujahedin offensive of December 1988 and the appellant's role in the arms convoy bound for [details suppressed]. Wherein the appellant alleged:
 

i. The authorities had foreknowledge of all the details of the offensive and the arms convoy but apparently not of the personnel involved (paragraph 23 of the appeal statement)

ii. PAR and BAB became fugitives so their role in the operation, if not already known then became immediately apparent to their superiors. However, unlike the appellant, they apparently did not attempt to flee the country because at some time later (prior to April 1992) they were arrested.

iii. The appellant on learning that PAR and BAB had fled recognised his own vulnerability but he did not immediately flee also. Instead he waited until he finished his military service in [details suppressed] and then travelled to northern Iran where he spent the next two years and eight months working as a wood turner while staying with relatives and no-one in authority, contacted him there.

iv. When the appellant received his friend PA's letter in April 1989 containing the news of PAR and BAB, he knew that they would be under death sentences and could only save themselves by confession all they knew, including the appellant's role in the abortive attack on the [details suppressed] convoy. (para 10 of the appeal statement).

v. Although aware of the risks he took, the appellant travelled down to his home in Tehran and stayed there approximately five weeks while he made arrangements to leave the country.

vi. In the street in Tehran the appellant meets a stranger who arranges to smuggle the appellant out of Iran for an initial fee of US$2,000 and these arrangements were apparently satisfactorily concluded. The appellant then left Iran on an Iranian passport under a false name. The passport is later taken from him, together with the ticket, at Bangkok airport by an associate of the stranger.
 
 

5. The appellant arrived in New Zealand on 10 June 1992 with the express purpose of seeking refugee status and did in fact do so at the airport. (Para 4 of his appeal statement). Yet he destroyed a letter from his parents (received, he believes, in July 1992) which told of a Sepah visit to his home that month. He now agrees that letter would be crucial to an acceptance of the whole of his story.

The appellant claims he fears that if he returned to Iran he would be arrested and executed for:

(a) Having given militarily sensitive information to the Mujahedin while serving in the military forces; and

(b) Having left Iran illegally to avoid arrest.

At the airport interview the appellant advised:

1. He had an Iranian Diploma of Science as a result of having been educated to tertiary level.

2. His fear of returning to Iran arose out of the authorities bothering his family because of their religion; they would put him in jail when they find out his refugee application made in this country; above all his name would go on a blacklist for people who cannot leave Iran.

3. It is getting financially difficult to study and continue with education in Iran.

4. He did not believe he was a "political refugee" rather a "social refugee".

5. He belongs to the Zoroastrian religion which is a minority religion in Iran believing in "fire" rather than "God". Because of this he could not get a job and was hassled by the authorities. Even though he himself does not practice this religion, he and his family are known as "zhars" and are hassled as a result.

6. Social life in Iran is very difficult.

The Authority places little weight upon information given at the airport interview acknowledging that an appellant would be under stress on arrival. Therefore little reliance was placed on the appellant's statements as noted above.

In a typed statement signed by the appellant on 7 July 1992 (one month after arrival) which accompanied his application for refugee status the appellant said:
 

"...In Iran I worked with a group which wanted to stop the war with Iraq. I wanted to go to university or get a job but I was told that I couldn't unless I did my military service. My application to go to university, was turned down because I did not do what the authorities wanted and I didn't belong to Angoman Islamic organisation at school. I did my military service and during this time I was asked twice to stay with Sepah because of information I had, but I refused. They put me in prison for three days. I tried to escape from Iran then but couldn't so I finished my military service then escaped. I am afraid that if I go back to Iran I will be arrested for refusing to join Sepah and because of the information I have..."
 
A further typewritten statement dated 31 July 1992 mentioned his escort duties for the first time and his association with PAR and BAB. This statement also contained information like the following which had been deleted from his narrative before it was presented to this Authority.
 
"I started my (military) training on [details suppressed] and because of the way they took me for military service it affected me physically and mentally very much. For example, there I was supposed to run on thorns and stones, lie down and roll on the ground where there are thorns. Then I used to be a watchman without any arms. They used to rush to the bedroom to create fear in people. Later on after my training on 23 September 1987, they sent me to [details suppressed] as a person escorting ammunition. And as I was against this government and I wanted peace, I refused to do it, so I was detained for three nights in K garrison. During these three nights they used to create fear and frighten me..."
 
 
In the interview report dated 27 August 1992, it is noted:
 
"Above named said he overstated the case on arrival in New Zealand with regard to being a Zoroastrian. He did so to help his case to stay in New Zealand. Actually it is not untrue but the Zoroastrian connection is in his mother's family. He himself was brought up as a Muslim."
 
 
Because of the variations appearing in his various stories the Authority has no confidence that the narrative told to it is the whole truth. That coupled with the items 1 to 5 above in the story about which it has grave reservations, lead it to the firm conclusion that the appellant's case is not credible. Accordingly it finds that this appeal must fail and refugee status is therefore denied."

[18] There is no dispute between counsel as to the Court's ability to review a decision of the RSAA. Khalon and Singh establish that such jurisdiction exists. However, there was a slight difference of view between counsel as to the ability to review a credibility finding.

[19] I am satisfied on the authorities that there is jurisdiction to review a credibility finding. That was central in Khalon and although the application failed as a matter of merit, Fisher J was not troubled as to jurisdiction to consider the merit issues in the context of natural justice and administrative law principles as applicable to refugee cases. That approach is supported by Cen v Canada (The Minister of Citizenship and Immigration) [1996] 1 CS 310. In that case the refugee applicant was a citizen of the People's Republic of China. She worked as a clerk in a travel agency. Because she was fluent in Japanese she was required to accompany her manager and a Japanese businessman on a tour of China which the Chinese considered might well lead to lucrative potential contracts very much in the interests of China. Miss Cen was obliged, against her will, to extend sexual favours to the Japanese businessman. When she protested her manager threatened to report her for practising prostitution and against that threat she allowed the sexual abuse to continue. When the tour was over she refused to attend work, eventually fled China, made her way to Canada and sought refugee status. The relevant immigration authorities considered her story to be implausible and rejected her application on both implausibility and adverse credibility findings. Her application for refugee status was declined. She sought judicial review. Gibson J was persuaded that such judicial review jurisdiction existed. At pages 316-317 of the report the learned Judge cited with approval the following extract from Decary J in Augebor v Minister of Employment and Immigration (1993) NR 315 (FCA) -

"It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed [sic] where it results from inferences than to have a finding of non-credibility review where it results from the conduct of the witness and from inconsistencies in the testimony. The court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".

There is no longer any doubt that the Refugee Division, which is a specialised tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn?"

"As indicated earlier, the CRDD made no comment on the documentary evidence before it that lent credence to the applicant's tale of exploitation and blackmail. Further, it apparently gave no weight to the fact that the applicant's manager was a member of the communist party, a manager in a state enterprise and engaged, through the exploitation of the applicant, in trade promotion, a priority of the PRC at the time. Against the test set out in the quotation from Aguebor above, I am satisfied that, here, the applicant has shown that, based upon the CRDD's limited analysis in this area, the inferences drawn by it in reaching its finding of implausibility could not reasonably have been drawn on the totality of the evidence that was before it."

[21] That is as it should be. If there is no probative evidence upon which the RSAA could formulate a credibility finding or if the RSAA failed to comply with the audi alteram partem rule, such that an unfair hearing has eventuated it would be the very antithesis of justice to exclude review. I concur with Fisher J in Khalon that each case will turn on its own facts. But I conclude that the jurisdiction to review exists; whether a plaintiff succeeds on the merits will depend on whether the decision is so unreasonable that no reasonable RSAA, properly conducting itself according to law could have reached the decision challenged.

The issues

[22] In the amended statement of claim the plaintiff sought an order setting aside the decision of the RSAA on three grounds -

(1) The first and principal ground was that the RSAA had not given B sufficient warning of the possibility of an adverse credibility finding and had thereby denied him the opportunity to provide an explanation or to respond to unarticulated concerns which the members of the RSAA seemed to have had. Further, B contended that the six reasons articulated in the decision as the basis for the adverse findings on credibility could not be sustained on the evidence. Alternatively, they contained errors or mistakes of fact which vitiated the decision or at least rendered it unsafe having regard to the high standard of fairness imposed in refugee cases.

(2) A second cause of action was founded squarely on the delay of the RSAA in delivering its written decision. It was contended that after a lapse of such a long period of time between hearing (11 November 1993) and decision (8 February 1995) no decision-maker could possibly be expected to have sufficient memory and recollection of the hearing upon which to fairly reach a decision. The thrust of Mr Ryken's submission was that the delay was unreasonable and that that in itself amounted to a breach of natural justice.

(3) The third cause of action was based on an allegation of incompetent translation from Farsi to English resulting in the RSAA not receiving a true and accurate picture of the plaintiff's evidence. The plaintiff argued that the interpreter was so inadequate as to have resulted in the members of the RSAA not receiving a real appreciation of his case.

[23] For the Minister, Mr Dickey submitted that the decision had to be looked at and interpreted as a whole. His basic submission was that when that was done it was clear that the way in which the RSAA had articulated the specific findings which justified its rejection of the plaintiff's credibility, could be sustained having regard to the earlier findings of the Authority on factual matters. He urged that I should not look just at the six articulated reasons offered to support the adverse credibility finding in isolation but that I should rather regard them as being mere examples of legitimate concerns properly entertained by experienced judicial officers comprising a specialist tribunal. Mr Dickey submitted that the articulated "problems" (which is how the RSAA introduced the subject) were simply examples. He submitted that the RSAA had correctly found that there were a number of variations in the different versions of events which the plaintiff had put before either the Refugee Review Section or the RSAA and whilst responsibly acknowledging that some mistakes of fact were recited in the decision it was his basic contention that, taking a broader picture these were not so serious as to invalidate the decision.

[24] Mr Dickey further submitted that although the delay between hearing and release of a decision was regrettable and was not to be encouraged, delays per se could not establish a recognised basis for this Court's intervention. He pointed to the complete absence of prejudice. It was his position that the evidence showed that the RSAA had reached a decision immediately after the hearing; it recorded the reasons for that decision in writing albeit some many months later and B had suffered no prejudice as a result of that delay. He had remained in New Zealand until such time as the decision had been released; he retained and exercised his right to appeal against the removal order and he retained and exercised, as witness these proceedings, his right to judicial review.

[25] Insofar as the complaints against adequacy of the translation service were concerned, Mr Dickey relied upon the evidence of Saeed Kashefpour. This witness clearly qualified as an expert in the Farsi language. He had listened to the tape recordings of the evidence given in the course of the inquisitorial hearing conducted by the RSAA. Whilst accepting that there were some identifiable areas where the translation could have been improved upon, it was his overall impression that the interpreter had provided a good and effective translation.

Finding - first cause of action - breach of natural justice in denying B an opportunity to confront issues going to credibility and/or mistakes of fact

[26] There is a material factual difference between the way B's hearing was conducted and the way in which the hearing which was the focus in Khalon was conducted. The differences are in my view not unimportant. In Khalon although the hearing was inquisitorial, it is to be noted that the Refugee Review Section was represented by counsel at the hearing and exercised rights to question the witness. As a result the RSAA had the advantage of a "quasi adversarial" format. In the present case, the Refugee Review Section was not present at the hearing on 11 November 1993. The Authority was therefore left to conduct what was fairly and squarely an inquisitorial hearing. The transcript of the evidence admits no other finding.

[27] The second, and in my view, important factual distinction between this case and Khalon is that in Khalon it is absolutely clear that the RSAA indicated in words of one syllable as the hearing progressed that credibility was a major issue. Accepting as I do that to some extent in any hearing where a decision has to be made on the facts that credibility will always be an issue, I am not persuaded that the areas which eventually weighed with the RSAA were so foreseeable or obvious that the RSAA was entitled to take a more relaxed view than it appears to have taken in Khalon.

[28] Not unexpectedly Mr Dickey submitted that B and his counsel ought to have anticipated that credibility would be an issue and that an adverse finding was always foreseeable, particularly in the areas upon which the RSAA eventually focused in its five point justification.

[29] I have no quarrel with the way in which the principle is expressed in Khalon at p.466 -

"I do not think that on this point Mr Hooker's suggested distinction between adversarial and inquisitorial hearings is supported by authority. Nor is it easy to see the policy reasons for it. Mr Hooker submitted that there was a greater need for credibility notice in an investigative setting due to lack of formal notice as to the issues (there being no formal charges or pleadings) and the different role of the decision maker (a Judge in an adversarial setting being neutral and it being left to the parties adequately to put allegations to witnesses). But at least in a case like the present one, it is inevitable that the applicant's general credibility will be of central importance. In such cases it can be expected that there will be a free-ranging examination on unsignalled collateral topics for the purpose of testing credibility per se. Whether a person's character is such that he or she is likely to tell the truth is not a matter which has any necessary connection to the facts in issue. The extent to which the facts in issue had been well-defined before the hearing is therefore largely immaterial for present purposes. There is no greater reason for expecting prior notice of collateral issues in that setting than there would be in an adversarial one. And it is difficult to see why it should make any difference that the questions may be asked by the tribunal or its counsel rather than counsel for the parties. The effect upon the witness in terms of notice and opportunity to respond will be the same.

There is a single underlying principle which I believe emerges from both the decisions and policy which underlies them: a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted. The converse will generally be true if the risk of an adverse finding was always foreseeable, particularly if the challenge to the finding relates to the way in which the tribunal had exercised a value judgment rather than the completeness of the material which had been placed before the tribunal. The key elements are surprise and potential prejudice. If an adverse finding is foreseeable there is no surprise. Even where there is surprise, there could be no prejudice unless better notice might have allowed the affected party to do something about it. Those principles seem applicable whether the hearing is adversarial or inquisitorial.
 
Applying those principles specifically to credibility, an adverse finding will usually be foreseeable without the necessity for express notice of that possibility. In addition, there will usually be little that the affected party could have done to stave off an adverse credibility finding with or without prior warning. This will be particularly so where the finding rests upon demeanour, inconsistencies and general propensities demonstrated during the hearing. Consequently I do not think that it will usually be necessary for a tribunal or decision maker to give credibility warnings, either generally or as to the particular grounds upon which an adverse credibility finding might rest. However the key elements of surprise and potential prejudice would seem to apply in this context as well. In the unlikely event that a party could show that he or she had been unfairly taken by surprise on a matter relating to credibility, and that with adequate notice it might have been possible to rebut the adverse inference, the fact that the issue concerns credibility would not of itself seem to preclude a remedy."

[31] It is my view that whilst the standard of natural justice will not vary as between adversarial/inquisitorial hearings, nonetheless a body having an inquisitorial function (especially in the context of refugee law where the standard of fairness is recorded as being high and where the benefit of any doubt is to be given to the applicant) has a duty to ensure that an applicant is given an opportunity to confront factual issues where a variety of explanations may be possible, when those issues assume significance in the minds of the inquisitors on the issue of credibility. If, as Fisher J observes in Khalon the applicant or his counsel can reasonably foresee that credibility issues flow from the matters being canvassed, then there will not be a need for the RSAA to articulate its concerns. It does not have to issue a provisional decision. But where, in the minds of the members of the RSAA credibility inferences are being drawn, in circumstances where it may not be clear to the applicant and/or his counsel as to what precisely is in the mind of the questioner there is an obligation to provide the refugee applicant with an opportunity to confront and explain the issue that is of concern to the RSAA..

[32] My concern is best exemplified by reviewing the points upon which the RSAA founded its credibility findings. I am not persuaded by Mr Dickey's submission that by introducing this section of the decision with the sentence.

"Problems which cause the Authority to have grave doubts about the appellant's credibility are; ..."

[33] I propose to analyse the five points which are offered as justification for the adverse credibility finding.

(1) The Authority finds that the fact that B did not effect a compromise of his views which would have allowed him to attain educational levels and subsequent job opportunities is a credibility issue. Mr Ryken submitted that B's political views resulting in his inability to procure a University education were simply a matter of fact. The "fact" cannot be changed. There is no basis upon which B could retrospectively have altered or compromised his views. So Mr Ryken submitted that point (1) was simply not a credibility point. Mr Dickey responded by submitting that what the Authority was really doing here was rejecting B's evidence that he held and formed these views at age 10 or 11; alternatively, that if he did have them, then his aspirations for a University education were always untenable because on B's own evidence, dissenters were excluded from University rolls. On that basis the evidence was, on Dickey's analysis, not credible. Mr Dickey did, however, acknowledge that the precise meaning of this finding was not clear and was capable of different interpretations. In my view that was a proper concession. I am unable to determine precisely what point the RSAA was in fact making. If this is an observation of fact, then it does not seem fair to make a credibility finding based on a fact which could not be changed. If the Authority was rejecting B's evidence on this issue (which it was fully entitled to do) then it ought to have done so in a clearer and different way.

(2) The RSAA next stated that the method of passing information on to the Mujahedin contracts was so fantastic as to be not credible. Mr Ryken's submission here was that an inadequacy in translation on a crucial issue as to the method of notification had occurred and that the RSAA members simply did not fully understand what the real evidence was. In the decision the RSAA makes specific reference to an apparent slip in the plaintiff's evidence which, in the way it is recorded in the decision, indicates that the Authority felt that the witness was not telling the truth. A review of the transcript undertaken by Mr Kashefpour shows that there was some confusion as between B and the interpreter over the issue of communication, although Mr Kashefpour did not accept that the plaintiff prefaced his answer on the issue of how sensitive intelligence about the movement of arms and munitions was communicated by the use of words "for example". In one section of the questioning the plaintiff said he passed the information on by phone or fast post. He later referred to telegraph. He then said that it was done sometimes by telephone at staging posts along the way. The RSAA seems to have concluded that the reference to telephone calls along the way was both illogical and untrue because its understanding of the evidence was that B did not pass on information relating to convoys on which he (B) was present but rather only passed on information in respect of other convoys. Mr Kashefpour accepted that the interpreter wrongly translated an answer to one question (she failed to refer to messages being passed on in a "coded way"). B's position on point 2 is that if he had been asked to clarify precisely how he could pass on information by telephone in respect of convoys which he was not personally accompanying, he would have been able to explain that he was aware of all of the movements of arms and munitions and that it was possible for him to telephone his contacts from one of his convoy's staging posts and advise about the movements of other convoys. He complains that the RSAA misunderstood the evidence and did not give him an opportunity to respond. Although this is one of the more marginal areas (it was in my view, open for the RSAA to disbelieve B on this issue) I do have some concern as to the adequacy of the translation in this area. I do not consider that it was truly foreseeable for B or his counsel to have anticipated that the RSAA might make a finding in circumstances where, with the benefit of hindsight, confusion existed. Neither B nor his counsel could have been aware of that - B because his command of English at that time was such that he had to leave it to the interpreter; his counsel, because he did not speak Farsi. All participants were under a language disadvantage. I have a sense of unease as to the overall fairness, which flowed from this difficulty, in relation to this finding.

(3) At point 3 the RSAA refers to the fanciful method of capturing convoys. Mr Ryken submitted that the decision is deficient in not explaining precisely why the Authority came to the view, as a matter of fact, that the descriptions offered by B were "fanciful". He submitted that the Authority had an obligation to give detailed reasons as to why it reached this decision. I am not so persuaded. It was open to the Authority to so conclude and that is fairly a credibility issue.

(4) Point 4 of the credibility findings is divided into a number of sub-paragraphs. Mr Ryken prefaced his submissions in criticising these points by reminding the Court that an asylum seeker is often faced with extreme difficulty in proving his case and the facts of it. There is simply an inability to produce evidence and that is why the Protocol requires that the benefit of the doubt be given to an applicant. At the outset I note that there is an obvious error in paragraph (iv) of the RSAA's finding - the letter from PA was received in April 1992 not April 1989. However, I agree with Mr Dickey that the reference to 1989 is simply a typographical error - it is clear from page 7 para 2 of the decision that the RSAA appreciated that it had been received in April 1992.

Point 4 in my view, more properly represents findings of fact than findings of credibility. For example, the fact that PAR and BAB elected not to flee Iran goes more to the question whether or not B's fears are "well founded" within the meaning of Article 1A(2) of the Convention than it does to support a finding of B's credibility. Likewise, a finding that B completed military service and then fled to Northern Iran for two years goes more to whether his fear is well founded than to credibility. Counsel made similar observations in respect of the remaining sections of point 4. He was critical of the fact that B was not given the opportunity of explaining in greater detail (in circumstances where it seems to have been a matter of moment to the RSAA) the precise circumstances in which he arranged his exit passport. The RSAA viewed the evidence on this point as if B had met a complete stranger on the street and procured a passport. B now contends that it was well known that Estanbul Street was an area in which contacts could be made and established for procuring false documentation.

Overall, I am not persuaded that real criticism can be made of the way in which the RSAA has expressed itself in point 4. I agree with Mr Dickey that the only inference one can draw here is that the Authority was making findings of fact contrary to the position being advanced by and on behalf of the applicant.

(5) Point 5 does, however, create an area of real concern. Here the RSAA observes that within a few weeks of B's arrival in New Zealand he received and destroyed a letter from his parents which, on his evidence, told of a visit of Sepah (a Government security force) to his parents' home. The Authority observes -

"He now agrees that letter would be crucial to an acceptance of the whole of his story."

[35] A further and not unimportant mistake also occurs at pages 11 and 12 of the decision. The RSAA records that it places little weight on interviews and information provided by B upon arrival at the airport. It apparently accepts that having gained entry to a country a refugee's immediate fears are of being forthwith placed upon an aircraft and returned to point of origin. For those reasons, persons claiming refugee status often exaggerate, fabricate or lie about their circumstances. The RSAA recognises that and specifically records that it places little weight on the airport interview.

[36] However, the Authority then goes on in its decision to refer to the appellant's typed statement of 7 July 1992 and a further typed statement dated 31 July 1992. It records that there had been a deletion from B's evidence before it was presented to the RSAA. This "fact" is considered to be of such moment that the RSAA made special comment on the deletion. Mr Dickey accepted that that was wrong. There had been no deletion of the paragraph which the RSAA regards as having been important. It was always contained in the written material and some confusion resulting in a mistaken view of the evidence arose. The RSAA mistakenly concluded that an important and fundamental change had been made and this added to its concerns about variations in the evidence. This mistaken belief clearly influenced the RSAA's perception of B's credibility. I cannot say with any real confidence what the RSAA's attitude might have been had it appreciated that there were not as many variations as it seems to have considered there were.

[37] The view I have been forced to is that in some areas the RSAA, conducting an inquisitorial hearing without the advantage of representation from the Refugee Review Section and notwithstanding the extension of a right to re-examine, failed to give B an opportunity to comment on matters which it regarded as important to credibility. In particular, a failure to clarify his precise explanation as to communication of the arms intelligence to the Mujahedin and an opportunity to explain why he destroyed the letter. The RSAA was mistaken in concluding that an important section of his narrative had been deleted. I am left with an uncomfortable feeling of uncertainty as to whether or not the RSAA would have reached the views it did reach on credibility if it had more clearly understood the position.

[38] In those circumstances, having regard to an environment which requires a high degree of fairness, and where the benefit of the doubt is to be extended to the applicant and where some of the credibility issues were not so foreseeable that B and his counsel ought to have volunteered the information, I conclude that this decision is not safe. The RSAA misdirected itself in reaching credibility findings on a mistaken or confused basis. It cannot be said that a reasonable RSAA acting on a correct rather than a mistaken basis with explanations from B on issues he could not reasonably have foreseen as being relevant would have reached this decision.

[39] Having so concluded the only proper course is to set the present decision aside and to remit the matter for reconsideration by a differently constituted RSAA.

Delay

[40] I do not consider there to be any merit in this separate cause of action. As Mr Dickey correctly submitted, B cannot point to any prejudice arising as a consequence of the RSAA's delay in delivering its decision. He retained his rights to appeal against the removal order and he retained his rights to seek judicial review. It is noteworthy that B was not complaining to the RSAA about the delay until he issued these proceedings. He never contended prejudice during the 15 month interval. He was quite content to just sit back and wait. If there was real prejudice, such an attitude would not have been adopted.

[41] Mr Dickey did not seek to justify the unacceptable delay between hearing and issue of the decision. It fell lamentably short of achieving the 8 week turnaround which the Protocol urges. In making that observation, I intend no unkind criticism of the RSAA. It is quite apparent that at this time it had a particularly excessive workload. I was informed from the Bar that it has so much work that it has to sit in divisions.

[42] One has to accept the reality that any authority or decision-maker with a heavy workload will have difficulty in achieving the short turnaround that the Protocol encourages. Equally, one has to accept that the longer the time between hearing and decision the greater the difficulty of precise recollection of the evidence and the impressions, favourable or otherwise, created by witnesses. I consider it very likely that even although the RSAA made its decision on 11 November 1993, by the time it came to be written (and a reasoned written decision is required) some 12 months later, the draftsman of the decision would not have been as familiar with the evidence as he would have been if the task had been undertaken at a much earlier point in time. That explains why there are a number of areas of mistake. I have no doubt that the RSAA was doing its best to recollect and refamiliarise itself with the evidence but it did not have the benefit of a transcript and for whatever reason, errors occurred. The effect of those errors are addressed in the first cause of action. I am not persuaded that the delay per se on these facts creates an independent basis for review. That claim fails.

Inadequate translation services

[43] I accept that a duty falls on the Refugee Review Section or the RSAA to provide competent translation services. That was not disputed by Mr Dickey for the Minister. Obviously any judicial or quasi-judicial authority has to be able to understand the evidence. Choudry v Canada (Secretary of State) 24 Imm LR (2nd) 197, establishes the principle that if there is a poor and inadequate translation and that fact prejudices the applicant such that his case is not understood, the rules of natural justice have been violated. To similar effect see Association in Appearance for Fairness in Education v Societe des Acadenis Du Nouveau-Brunswick Inc [1986] 1 SCR 549 and Mosa v Canada (Minister of Employment and Immigration) (1993) 154, NR 200 (FC: CA).

[44] But a degree of realism has to be accepted. Interpreting from one language to another is not a precise science. Inevitably, there will be room for differences. Different interpreters will no doubt have different views as to the correct translation, nuance and emphasis. That point is well made in Basyony v Canada (Minister of Employment and Immigration) (1994) 27 Imm LR (2nd) 303, 306 where Reed J notes -

"The applicant before me stated that his purpose in referring to the errors of translation, in his leave application and in his request for reconsideration, was to demonstrate that the quality of the hearing before the CRDD was defective. He viewed the interpreter, the hearing officer and the board as being opposed to his claim from the beginning and as working together to defeat that claim. While the applicant may feel that this was the case, this Court cannot so conclude without clear and convincing evidence. Some errors in translation, which do not affect the overall outcome of the hearing, are not sufficient for that conclusion. One is mindful of the fact that translation is not an exact science. There is always room for differences in nuance between what is said in one language and its translation into another. This can occur without any malicious intent on the part of the translator. Such inexactitude has to be expected. I could not draw, from the evidence which was put before me the conclusion which the applicant draws."

"The interpreter's work was good. Some of the answers the appellant gave were long and complicated which made for difficult translation. I think the interpreter should have asked the appellant to pause or repeat ."

[47] The cause of action founded on inadequate translation fails.

Judicial review - orders

[48] Having concluded that there are sufficient concerns to render the decision unsafe, I set it aside and remit the matter back to the RSAA. I direct that B's appeal be reheard by a differently constituted RSAA. I recommend that in the particular circumstances the RSAA give consideration to requesting that the Refugee Review Section be represented by counsel at the reconvened hearing, or alternatively that the RSAA appoint its own counsel to assist. That ought to enable the Authority to be assisted in the very difficult task it has of trying to get to the bottom of the truth or otherwise of the claims made by B in an inquisitorial hearing. The new hearing should be accorded priority. B has now been in New Zealand for 5 years. If he has no right to be here it is wrong for him to be lulled into a false sense of security.

[49] The new hearing should proceed on the basis of the written evidence already before the RSAA. B should be provided with the opportunity of an oral hearing. Although I leave it to the RSAA, there must be some limit imposed on B's right to produce extensive supplementary evidence. I entertain a concern that in this case B has sought to shelter behind claims of inadequate translation and has gained the advantage, through the judicial review proceeding, of effectively procuring a provisional decision highlighting areas of concern. The RSAA will be entitled to take those facts into account when it readdresses the issue of credibility and makes its findings of fact as to whether or not B's refugee status claim is "well founded".

[50] B should understand that the mere fact that I have remitted the matter for further consideration does not carry with it any implication that I believe B's evidence to be truthful, nor does the mere fact of remission imply that I hold a view that B is a credible witness. It remains open to the RSAA to reject B's credibility and/or to make findings of fact adverse to his claim to refugee status in a new hearing conducted in accordance with the principles of natural justice and addressing the concerns which are highlighted in this decision. The RSAA should not feel in any way constrained by the determination I have reached. It is a specialist tribunal; it is comprised of members well used to making assessments of credibility (which are often founded on the basis of demeanour, conduct and reactions at the hearing as much as on inconsistency grounds) and it must be left to it to decide the matter on the evidence and having regard to B's demeanour.

Appeal against the decision of the Removal Review Authority

[51] Mr Ryken's basic complaint here was that the RRA had simply accepted and embraced the RSAA's findings on credibility and had failed to give a reasoned decision of its own both on credibility issues and on the humanitarian grounds on which the appeal against the removal order was founded. In support of the appeal, it was made quite clear by B's solicitors that the grounds of the appeal were essentially the same as had been put before the RSAA. The RRA was urged to reach a different conclusion on the issue of credibility from that reached by the RSAA. A draft of the foreshadowed statement of claim in the review proceedings was put before the RRA.

[52] The RRA did address the findings of the RSAA on the issue of credibility. It did embrace them. But in my view it was entitled so to do. As Thorp J points out in Talukder v Removal Review Authority (High Court, Auckland, M. 140/95, 30 March 1'995, unreported)), where precisely the same issue for consideration is required to be determined by two tribunals and where one such tribunal (the RSAA) conducts an oral hearing in contra-distinction to the process before the RRA under s 63B, then there is nothing untoward in the latter authority deferring to the findings of the former. That is precisely what occurred here and I reject the criticism that Mr Ryken directed on that aspect.

[53] Mr Ryken further submitted that the RRA's decision was deficient because it did not give a reasoned explanation as to why it rejected B's appeal on humanitarian grounds. He contended that in accepting the RSAA's findings on credibility and in failing to give a detailed explanation as to why B's affidavit evidence challenging those findings was not considered sufficient, it had not issued a reasoned decision or made any finding. As I read the RRA's decision, although it was prepared to adopt the credibility findings of the RSAA, it did nonetheless review the other material submitted by B.

[54] Whilst it may be preferable for the RRA to provide reasonable detail as to why it does not accept a humanitarian ground based appeal (and it is to be noted that the RSAA has no jurisdiction to consider humanitarian grounds), an encyclopedic type decision is not required. Provided the decision demonstrates overall why the RRA has reached the conclusion it has no exception can be taken.

[55] This particular appeal is on point of law only. Question (a) is in the following terms.

Q. (a) Whether the Removal Review Authority is entitled to prefer the findings of the Refugee Status Appeals Authority concerning the credibility of the evidence of the appellant without hearing the appellant orally, or requiring an oral interview pursuant to section 63D(4)(a).

Q. (b) Whether the decision of the Removal Review Authority based on mistakes of fact is therefore void.

Q. (c) Whether the Removal Review Authority must as a question of law give reasons with sufficient particularity as to why it has rejected the evidence of the appellant as to credibility and adopted the findings of the RSAA.

Ruling on the appeal

[59] Given that I have set aside the decision of the RSAA upon which the RRA based much weight on the credibility issue, it follows, as counsel for the RRA accepted, that its finding on appeal must be set aside and remitted. I accordingly quash the decision of the RRA on appeal and remit the matter back to it. I direct that it should reconsider the appeal as a matter of priority after the RSAA has reconsidered B's application and made a determination on it.

[60] Just as I have recorded in the context of the RSAA's decision, the RRA should not feel constrained in its approach to a rehearing of the appeal. Nothing that I have said in this judgment should be interpreted as indicating that I prefer the evidence of or believe B or that I hold any particular view as to his claim to refugee status and/or as to the correctness of his claim to humanitarian relief. Those issues remain where they should properly remain, that is with the two specialist bodies which have been established to deal with these kinds of applications.

Suppression orders

[61] B sought a permanent order suppressing publication of his name and the names of witnesses and facts which might enable the Iranian authorities to identify him/them. The basis of the request was that in the event of his refugee status claim ultimately failing he would be at risk of persecution. It was submitted that the Iranian authorities are known to monitor the activities of their citizens whilst abroad and that if they were enabled, through publicity to identify B then he would be at such risk that he would be entitled to claim refugee status on the basis of future risk, such a claim being known as a "sur place" claim. Mr Dickey did not oppose a suppression order, no doubt not wanting to encourage or create a new refugee claim should B fail on rehearing.

[62] I am prepared to make a final order suppressing names (and now do so) but I have some concern as to how far it is necessary to suppress the facts. I believe the most sensible approach is to release the judgment only to counsel and parties at this stage (with names suppressed) and to invite counsel to confer with a view to making suggestions to me as to the extent of suppression of facts. This could usefully be done by resubmitting a copy of this judgment edited in such a way as to indicate deletions requested in any public release. Mr Ryken should appreciate that I expect commonsense and realism to be applied. I am unlikely to suppress every fact, only those which create a real risk of identification. I require a joint memorandum to be filed within 14 days of the date of release of this judgment identifying areas for deletion or highlighting any differences. I will not reconvene to resolve any differences; I will rule on the memorandum. In default the judgment will be released with names only suppressed.

[63] There will also be an order pursuant to r.66 directing that no person (other than the parties and their legal advisers) may search this file other than with leave of a Judge made on formal application to be served upon the parties who shall have a right to be heard on any such application.

[64] I allow B costs of $2,000 with disbursements as agreed or fixed by the Registrar.

Solicitors for the plaintiff: Haigh Lyon (Auckland)
Solicitors for the defendants/respondent: Meredith Connell (Auckland)